Update on the Polar Bear-Endangered Species Act Multidistrict Litigation

In 2008, the U.S. Fish & Wildlife Service listed the polar bear as a “threatened” species under the Endangered Species Act (“ESA”), based largely on perceived threats from future global climate change (e.g., reduction in the bear’s sea-ice habitat).  This controversial ESA listing and the adoption of a special ESA § 4(d) rule for the polar bear led to the multidistrict litigation known as In re Polar Bear Listing and § 4(d) Rule Litigation, Misc. No. 08-764 (EGS), MDL Docket No. 1993 (D.D.C.), pending before U.S. District Judge Emmet G. Sullivan. 

Among other challenges, advocacy organizations contest the Service’s decision to issue a special rule under ESA §4(d) that (i) continues to apply the existing Marine Mammal Protection Act (“MMPA”) procedures for authorizing non-lethal incidental take for activities (e.g., oil and gas development) in the Alaska range of the polar bear; and (ii) prevents ESA legal actions, including citizen suits, alleging that otherwise lawful emissions of greenhouse gas emissions (“GHGs”) outside the polar bear’s range are causing the incidental take of a polar bear.  See 50 C.F.R. § 17.40(q).  The plaintiffs in this case believe that the full range of ESA procedures should apply in Alaska and that GHG-emitting activities amount to “takes” of polar bears that can be the subject of citizen suit challenges under the ESA.¹  

On October 17, 2011, Judge Sullivan issued an opinion and order on the legality of the special ESA § 4(d) rule for the polar bear.  __ F. Supp. 2d __, 2011 WL 5022771 (D.D.C. Oct. 17, 2011).  The slip opinion is available here.  By way of background, ESA § 9 makes it unlawful to “take” or commit other prohibited acts with respect to endangered species, but ESA § 4(d) provides the Service with some discretion on the prohibitions applicable to a less-imperiled “threatened” species.  See 16 U.S.C. §§ 1533(d) and 1538.  The Supreme Court has held that ESA “take” of wildlife occurs when an action causes death or injury to a particular animal (even inadvertently, such as a wildlife death that occurs incidental to an otherwise lawful land use activity), and that liability extends only to the proximate cause of the “take.”  Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687 (1995).

In a nutshell, the district court found that the 4(d) rule for the polar bear was substantively permissible under ESA § 4(d).  But the court found that Interior procedurally violated the National Environmental Policy Act (“NEPA”) in not preparing any NEPA document on the 4(d) rule. 

The opinion recognizes that the ESA itself does not make the “take” of a threatened species unlawful, and recognizes that Interior has broad discretion under ESA § 4(d) regarding the regulations applicable to a given threatened species.  See 2011 WL 5022771 at *3, 10-15.  The district court rejected the advocacy groups’ argument that it was unlawful and arbitrary for Interior’s 4(d) rule to prohibit suits alleging that a particular source of GHGs is causing the “take” of a polar bear.  Judge Sullivan reasoned that, because existing science cannot “identify a specific source of CO2 emissions and designate it as the cause of specific climate impacts at an exact location,” and because ESA “take” liability is limited to the proximate cause of the “take” of an individual animal, extending the ESA “take” prohibition to the bear would not materially assist in “conservation” of the bear within the meaning of ESA § 4(d).  2011 WL 5022771 at *12-14.  Interior did not violate the language in ESA § 4(d) that plaintiffs believe to require rules that are “necessary and advisable” for “conservation” by declining to extend an ESA prohibition against “take” and incidental take that would be ineffective in addressing GHG emissions.  See id.  This decision rests ultimately on the confluence of science and law in that: (1) any individual source of GHGs has an infinitesimally small, undetectable effect on the global climate and the polar bear’s sea-ice habitat; (2) only the cumulative total of millions of past, present, and future GHG sources might theoretically affect the global climate and sea-ice habitat; but (3) because an ESA “take” suit would have to be directed against particular GHG emitters, plaintiffs seemingly could not prove that specific GHG emissions would proximately cause the actual injury to an individual polar bear constituting enjoinable “take.”

Significantly, the opinion states:  the “question at the heart of this litigation – whether the ESA is an effective or appropriate tool to address the threat of climate change – is not a question this Court can decide” in the abstract, but rather is a policy question for resolution by the Executive Branch.  2011 WL 5022771 at *15.  Both the Republican Bush Administration and the Democratic Obama Administration have concluded the ESA cannot and should not be employed to regulate GHG emissions. 

Although the special 4(d) rule for the polar bear was found to be substantively permissible under the ESA, the district court held that the absence of any NEPA document on the discretionary 4(d) rule was a procedural defect.  2011 WL 5022771 at *15-19.  Judge Sullivan acknowledged that his decision was contrary to the only prior decision on point, which had found that NEPA does not apply to the adoption of ESA § 4(d) rules.  He left to Interior the choice between preparing an environmental impact statement (“EIS”) or a less-burdensome environmental assessment (“EA”).  See id. 

Judge Sullivan adopted a complex remedy for the curable NEPA defect.  See 2011 WL 5022771 at *20 and Order dated Oct. 17, 2011.  The December 2008 final 4(d) rule remains in effect until the court issues a further order on the timetable for completing the NEPA review of the 4(d) rule and reasonable alternative rules.  The parties have been directed to “submit a joint proposed [NEPA] timetable” to Judge Sullivan by November 17, 2011.  Id.  Upon issuance of a future court order on that timetable, the “December 16, 2008 final Special Rule” is to be vacated, and the predecessor “May 15, 2008, Interim Final Special Rule shall remain in effect until further Order of the Court.”  Id.

The interim final 4(d) rule is similar to the December 2008 4(d) rule.  The only material difference is a relatively small variation in its geographic application.  The December version effectively prohibits incidental take actions against a lawful activity occurring outside “the current range of the polar bear” in northern Alaska.  The interim final rule prohibits incidental take actions against a lawful activity occurring outside the entire State of Alaska.  See 73 Fed. Reg. 28306 (May 15, 2008). 

Judge Sullivan’s ruling yields two significant results:  First, the wide range of productive human activities that emit GHGs (e.g., generating electricity, oil and gas operations, driving a car) in the Lower 48 States are not subject to ESA citizen suits and to potential injunctions on a theory that a particular source of GHG emissions causes “take” of an individual polar bear.  Second, in Alaska, incidental, non-lethal takes of polar bears can continue to be permitted under existing MMPA authorities; ESA standards and procedures for approving such incidental take have not been imposed. 

Crowell & Moring LLP represents six national trade associations, including the American Petroleum Institute, the Edison Electric Institute, the National Mining Association, the Chamber of Commerce of the United States of America, the National Association of Manufacturers, and the American Iron & Steel Institute, in this litigation.